R v IG [2019] NSWChC 7

Children's Court New South Wales

Medium Neutral Citation: R v IG [2019] NSWChC 7 Hearing dates: 25 September 2019 Date of orders: 25 September 2019 Decision date: 25 September 2019 Jurisdiction: Criminal Before: Children's Magistrate Hogg Decision: The defence is under s 80(AG) applies in this matter and operates retrospectively Catchwords: CRIME – Young Persons Legislation Cited: Crimes Act 1900 Criminal Legislation Amendment (Child Sexual Abuse) Act, 2018 Interpretation Act 1987 Cases Cited: Maxwell v Murphy (1957) 96 CLR 261 R v Morton [1986] VR 863 Category: Procedural and other rulings Parties: Department Public Prosecution (Crown) The Young Person Representation: Mr Maher, solicitor, for the Crown Mr Tate, solicitor, for the Young Person File Number(s): 2018/00295589 Publication restriction: Pseudonyms have been used

Judgment 1. In this matter presently for determination by this Court the young person raises the issue of defence of similar age, s 80(AG) of the Criminal Legislation Amendment (Child Sexual Abuse) Act, 2018. That section commenced on 1 December 2018. The enactment of s 80(AG) gives rise to the establishment of a new defence. Section 80(AG) reads at subs (1): "It is a defence to a prosecution for an offence under s 66 (C)(3), s 66(DB), s 66 (DD), s 73 or s 73(A) if the alleged victim is of or above the age of 14 years and the age difference between the alleged victim and the accused person is no more than two years". 1. Subsection 2 reads: "In any criminal proceedings in which the application of this section is raised the prosecution has the onus of proving beyond reasonable doubt that the alleged victim was less than 14 years of age and that the difference in age between the alleged victim and the accused person is more than two years". 1. It is agreed between the parties that the age difference between the young person and the alleged victim was less than two years. The young person is charged pursuant to s 66(C)(3) of the Crimes Act 1900. As noted when reading s 80(AG), s 66(C)(3) is one of the offences contemplated in the amending legislation. The indictment pursuant to s 66(C)(3) reads that: "the young person, between 12.01am on 1 February 2018 and 11.59pm on 1 May 2018 at Dubbo did have sexual intercourse with SA, the said SA being a person above the age of 14 and under the age of 16, to wit a person of the age of 14 years and six months". 1. Section 80(AG) as indicated commenced on 1 December 2018, however these proceedings commenced before the introduction of that section and thus there is raised the question as to the possible retrospective applicability of s 80(AG). The issue of retrospectivity is not mentioned in any transitional provisions, nor is it mentioned in any savings provisions, nor is it mentioned in the actual wording of the section. 2. The defence raised the issue of the applicability of the defence and made certain submissions. I will reiterate some of those submissions. The defence raises that it is clear that if the young person were charged today the defence would apply. It raises that the rule against retrospectivity appears to exist to protect people from punishment of crimes that did not exist when the person acted, as opposed to laws to protect people from punishment because of changing attitudes to crimes and behaviours. The presumption against retrospectivity is rebuttable when, for example, a penalty is reduced by the amending legislation. In such circumstances it may be that the retrospectivity of the new penalty is implied. The Supreme Court of Victoria on this issue relating to changes in legislation providing for more beneficial sentences for acts already committed, stated that…: "The fact that a benefit is conferred outweighs the presumption against retrospectivity". See R v Morton (1986) VR at 863. 1. The defence further raises that when interpreting legislation the plain and clear meaning will be preferred but if the words are ambiguous and open to alternative interpretations, then one must have some consideration of the context in which the provision applies and the extrinsic material, such as second reading speeches and purposes of the legislation, as well as considering the mischief which the statute is to remedy and any absurdity that would result from one construction over another. The defence ultimately submits that if there is a remaining ambiguity then all acts should be construed beneficially as to give the fullest relief to the liberty of a person that the language of the legislation will allow. The defence went on to quote some general statements from various sources including a dissenting judgment in the High Court by Isaacs J that has later been cited with approval in the Victorian Supreme Court, that statement being: "In the first place this is a remedial act and therefore if any ambiguity existed like all such acts should be construed beneficially. This means, of course, not that the true signification of the provision should be strained or exceeded but that it should be construed as so as to give the fullest relief which the fair meaning of the language will allow." See R v Morton (1986) VR at 863 1. The defence submissions went on to suggest that as the savings and transitional provisions are silent on retrospectivity, the other means of interpretation must be enlivened in accordance with ordinary provisions of statutory interpretation as discussed above, and I have previously referred to those four points. 2. The defence states that the words used within a section that is a defence to a prosecution for an offence under the various nominated sections. This seems fairly clear. The language is wide and opens the interpretation of its applicability rather than confining it. 3. The title of the amending section is "Defence of Similar Age". The second reading speech when discussing the amending Act states that: "The bill contains three key reforms to reduce criminalisation of children". 1. It appears clear that the legislature intended to rectify a mischief of young, similar age children engaging in consensual activities from becoming criminalised. The defence has been enacted to reflect changing community attitude and comes about from reflection of the fact that many people in circumstances covered by the defence have been subject to previous penalty. If the defence was not retrospective it could mean that historical offences charged after 1 December would have this defence available but an offence such as this charged only three months before commencement would not be given the protection of the defence. Given the stated intention of reduction of criminalisation by these amendments, such a scenario would be nonsensical. 2. So it seems to me that when there is no clear language on retrospectivity for a remedial or beneficial act the normal provisions of the rule against retrospectivity are not enlivened and the most beneficial interpretation of the language allows should be preferred. 3. The general tenor of the defence submissions is that in short if there is any ambiguity arising from the wording of the amending legislation then that ambiguity should be resolved in favour of the defendant by way of appropriate beneficial interpretation. 4. These submissions are contested and opposed by the prosecution. Their submissions are as follows: "There is a common law presumption against an amending Act having retrospective application to facts or events that already occurred". 1. The authority for that proposition is Maxwell v Murphy (1957) 96 CLR at 261 per Dixon CJ at 267. 2. The common law presumption is further enshrined in s 30 of the Interpretation Act 1987 which relevantly states: "The amendment or appeal of an Act or statutory rule does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty and any such penalty may be imposed or enforced and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Act or statutory rule had not been amended or repealed." 1. Still reading from the prosecution's submissions: "Both at common law and by the Interpretation Act, s 5(2) presumptions are capable of being displaced by clear parliamentary intention to do so. Regard should be first had to the terms of the section itself. While s 80(AG)(2) is expressed in terms of any criminal proceedings in which the application of the section is raised, this subs is not actually dealing with the operative application of the defence which is governed by s 80(AG)(1). The section provides that defence applies to offences relevantly to s 66(C)(3), s 66(DB), s 66(DD) and others. The inclusion of the new provisions, s 66(DB) and s 66(DD) in our submission is telling as parliament has not included the former analogue provisions of s 61(M) and s 61(O). The analogue provisions continue to have effect with respect to allegations or acts that occurred prior to the amendments of 1 December 2018. To the extent that s 80(AG) might be thought to be ambiguous or obscure, although it is manifestly absurd or unreasonable, regard may be had to the second reading speech and to s 34(1)(B)(1) and (2) of the Interpretation Act." 1. Identifying the comments in the second reading speech relating to s 80(AG) the prosecution points out that while accepting that "voluntary sexual conduct between peers should not be a criminal offence" is a strong and explicit statement of the purpose of the section it does not display a sufficient intention nor a sufficiently specific intention to display the presumption against retrospectivity. Whilst there is reference to respective applicability for an offence such as s 66(EA) there is no reference to retrospective application of s 80(AG). 2. It is submitted, therefore, in general terms by the prosecution that no clear parliamentary intention for retrospectivity exists and therefore, one must look at the specific language of the amending legislation. Indeed, it seems to me that the essence of this issue does require consideration of the words of the actual amending legislation. Section 80(AG)(2) states: "In any criminal proceedings in which the application of this section is raised the prosecution has the onus of proving beyond reasonable doubt that the alleged victim was less than 14 years of age". 1. These proceedings commenced before the amending legislation which introduced the defence. I note from the submissions of the prosecution that they seek to have subs (2) read in some isolation from subs (1). Subsection (1), as noted, raises a description of the defence and the offences to which it applies. But subsection (2) then goes on to say that in any criminal proceedings in which the application of this section is raised, the prosecution needs to prove concepts of age beyond reasonable doubt. 2. What subs (2) does say, permissively, is that the defence may be raised and it may be raised "in any criminal proceedings". As noted the proceedings commenced before the amended legislation but as at today these proceedings are extant, they are not completed proceedings, they remain as live criminal proceedings. Subs (2) contemplates the new defence being raised in "any criminal proceedings". The young person submits he relies on that defence. That defence is raised in the subject criminal proceedings. Thus is may be said that the very words of the amending legislation contemplate existing proceedings and proceedings that may occur in the future. Previously completed matters are no longer extant as proceedings. This construction thus may need to be considered in the context of s 30 of the Interpretation Act 1987 which I have previously read on to the record. 3. We are faced with a scenario where the Interpretation Act says the legal proceedings may be continued as if the Act had not been amended and where there is no transitional or savings provision and where there is no direct statement as to the applicability of retrospectivity. Does this comparison give rise to any ambiguity? I say it does. The words used "in any criminal proceedings in which the Application of this section is raised" opens the way to interpret the s 80(AG) defence may be raised in these proceedings. Are those words of themselves sufficiently unambiguous to indicate clear statutory intention? I think probably not. 4. "In any criminal proceedings" could perhaps contemplate only those proceedings which commenced after the introduction of s 80(AG). I proffer this possibility because it may be suggested that subs (2) only applies to those proceedings which were commenced after the defence became available but I don't believe that is what the section says. It seems to me that if these are "criminal proceedings" and the amending legislation contemplates that the defence is able to be raised "in any criminal proceedings" then any ambiguity, if indeed it does exist, should be resolved beneficially for the accused young person. The introduction of and wording of s 80(AG) does not say, "in any criminal proceedings commenced after the introduction of this section" it says, "in any criminal proceedings" in which the application of this section is raised, and these are such proceedings. 5. I accept those submissions made by on behalf of the young person that are stated in the Supreme Court in Victoria in R v Morton: "The fact that a benefit is conferred outweighs the presumption against retrospectivity". 1. It is a beneficial solution and interpretation to any ambiguity that may exist and endorses the intention of the Attorney General to reduce the criminalisation of such matters as stated in the second reading speech.